Food safety

Food that kills – gross negligence manslaughter

Failure to serve safe food in your restaurant or takeaway could put you in prison.

Mohammed Abdul Kuddus and Harun Rashid who were the owner and manager of a takeaway in Lancashire were recently convicted and imprisoned for 3 years and 2 years respectively. This case has caused much concern, particularly amongst Indian restaurateurs.

This was the second case where death had resulted from not taking food safety – food allergens seriously. Earlier, in 2016, Mr. Mohammed Zaman was convicted and imprisoned for 6 years at Teesside Crown Court.

In both cases the establishments had provided food that contained peanuts or peanut protein to customers who were seriously allergic to these products.  This was despite the fact that in both cases the customers had warned those supplying the meals of their allergy. For two of the customers the consequences could not have been more serious.   Their allergic reactions to the food killed them.

This article will focus on helping you to avoid similar convictions.

Legal Background

In law you have a duty of care to your customers and serving them food that makes them ill or worse means you have breached that duty of care.

A particularly bad breach of your duty of care can lay you open to the more serious charge of gross negligence.  And if, as in the cases described above, your gross negligence results in the death of a customer then you can be found guilty of gross negligence manslaughter.  This is the charge that put the defendants above in prison.

At what point does a breach of duty become gross negligence?  Ultimately, that will be decided in Court.  But one important factor affecting the Court’s decision is whether the serious consequences of the breach were obvious.  In other words, were they foreseeable?

In the two cases described above they clearly were.  The dangers of nut allergy are well established. The negligence was even less excusable because the customers had warned the meal suppliers that they were allergic to peanuts.

To sum up: a major breach of the duty of care caused the two deaths leading to a charge of gross negligence manslaughter.

What you need to do  

So if you are a restaurateur how can you protect your customers from unsafe food and yourself from conviction?

Quite simply the answer is to not serve them unsafe food that will make them ill or worse.

Steps to achieve this include:

  1. Make sure you know all the ingredients in the food you sell.

Neither establishment in the cases listed above had a list of the ingredients used in their recipes.  Commenting on the takeaway owned by Mr Kuddus the trial Judge Mrs Justice Yip commented, “it appears that no one had any way of knowing what allergens were in the food supplied.”

  1. Communicate the possible risks from allergens to your customers.

Make sure your meals are accurately labelled with information about allergens they may contain.  This information should also be clearly written on the menu e.g. “Warning, contains peanuts”

Where you have been unable to confirm whether or not a particular meal contains allergens you should make this clear to your customers, e.g.  “May contain peanuts or peanut nut protein.”

Such communication is equally important should food be ordered online or taken away from the establishment to consume.

  1. Make sure that your staff are properly trained in food safety

Staff should be regularly trained on food safety and hygiene.  They should know what kinds of food are likely to contain allergens and how to provide food that is safe.  This training should enable them to advise customers on the possible risks from allergens in dishes served by the establishment.

  1. Ensure you pick up and respond to customers telling you about their allergies

For example, waiting staff should be trained to listen to customers informing them about food allergies and advise appropriately.  In particular, you must ensure you do not miss online messages from customers telling you about their allergies. For example if there is a space on the booking form for customers to record allergies make sure this is read and acted on.

  1. Ensure that your system to protect customers from unsafe food is working.

For example you need to make sure that your staff are all properly trained in food hygiene.  You also need to make sure that the training is up to date and that all staff are properly trained and complying with their training.

You must also check your list of ingredients to be sure it includes any changes to your menu.

The Government runs the Food Hygiene Rating Schemes with local councils to help businesses improve hygiene standards.

  1. Consider hiring a consultant

Making sure you get a competent and reliable consultant may not be as easy as it sounds.  At the time of writing there does not appear to be a list of authorised reputable consultants.

Further Guidance

As we have seen the consequences of failing badly in your duty of care can put you in prison.  Taking the steps outlined above will help protect your customers and your business.  But this list of steps is not comprehensive.   The sources below will give you further valuable advice:

 

  • Allergen Guidance for the Industry: Published by the Food Standards Agency.   This guidance helps you understand the legal requirements for declaring and labelling allergens.  It also points to resources that will help staff understand and apply the requirements.  You can find this guidance at https://www.food.gov.uk/business-guidance/allergen-guidance-for-industry
  • Hygiene Requirements for your business: Published by the Food Standards Agency.  As well as outlining food hygiene requirements for your business this guidance also provides links to more comprehensive guidance such as the British Hospitality Association Catering Guide.   You can find this guidance at: https://www.food.gov.uk/business-guidance/hygiene-requirements-for-your-business

Please contact us today or call us on 0121 440 0444 if you require advice on compliance with food safety laws, or are being investigated for or prosecuted in relation to food safety matters.